Lack of Constructive Notice In New York
To satisfy the burden on the issue of lack of constructive notice, the moving defendant must provide evidence when the area was last inspected relative to the time of the injured plaintiff's accident. Gerbi v. Tri-Mac Enterprises of the Stony Brook, Inc., 34 AD3d 732, 733, 826 N.Y.S.2d 101 (2nd Dept. 2006); Birnbaum v. New York Racing Ass'n, Inc., 57 A.D.3d 598, 598-99, 869 N.Y.S.2d 222 (2nd Dept. 2008).
In Yioves v. T.J. Maxx, Inc., 29 A.D.3d 572, 573, 815 N.Y.S.2d 119 (2nd Dept. 2006), the Court held that defendant did not make a prima facie showing that it neither created the dangerous condition nor had actual or constructive notice of the defect because the defendant failed to introduce evidence that the puddle at issue was not visible and apparent.
The foregoing rule has been applied to accidents in parking lots and it has been held that a defendant's burden on a summary judgment motion cannot be satisfied merely by pointing out gaps in a plaintiff's case. Totten v. Cumberland Farms, Inc., 57 AD3d 653, 871 N.Y.S.2d 179 (2d Dept. 2008); See also Musachio v. Smithtown Central S.D., 68 AD3d 949, 892 N.Y.S.2d 123 (2d Dept. 2009); cf Cerkowski v. Price Chopper Operating Co., 68 AD3d 1382, 891 N.Y.S.2d 192 (3d Dept. 2009).
It is only after the moving defendant has satisfied the threshold burden of proving a prima facie case that the Court will examine the sufficiency of the plaintiff's opposition. Fox v. Kamal Corp., 271 AD2d 485, 706 N.Y.S.2d 142 (2nd Dept. 2000).
Moreover merely pointing out gaps in the plaintiff's case" will not satisfy the defendant's burden of proving that it did not have notice and did not create the condition. DeFalco v. BJ's Wholesale Club, Inc., 38 AD3d 824, 832 N.Y.S.2d 632 (2nd Dept. 2007).